Matthew T. Mangino: The enormous cost of civil commitments

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Jun 9, 2017 at 2:51 PMJun 9, 2017 at 2:51 PM

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Earlier this year, The U.S. Court of Appeals for the Eighth Circuit upheld a Minnesota law that provided for the indefinite detention of sex offenders after completion of their prison sentences.U.S. District Court Judge Donovan Frank wrote that the Minnesota Sex Offender Program violated the due process rights of the people it involuntarily detained in prison. The Eighth Circuit disagreed.

Pennsylvania currently has eight men locked-up who have served their complete sentence for a crime committed years ago. These men are sex offenders. They are sexually violent predators, as determined by a civil court, and are being detained indefinitely. Pennsylvania is one of 20 states that provide for the civil commitment of sexually dangerous offenders. There are more than 3,600 men, and some women, committed or detained across the country.

There are 231 sex offenders currently being held indefinitely in New York, who have also completed their criminal sentences. Civil commitment is not new. The procedure has been used for decades with regard to the mentally ill and those with highly contagious diseases. More recently it has been applied to sex offenders with a diagnosable mental abnormality with likelihood to re-offend.

In 1997, the U.S. Supreme Court found that civil commitments were an appropriate state action. In Kansas v. Hendricks, the high court upheld the Kansas Sexually Violent Predator Act. The court found that the statute violated neither the double jeopardy clause, punishing an offender for the same crime twice, or ex post facto, punishment through a law applied retroactively.

In 2006, the federal government entered into the civil commitment business. Congress passed the Adam Walsh Child Protection and Safety Act, which gave the federal government authority to seek civil commitment of “sexually dangerous persons” already held in its custody. That authority, in turn, allowed the government to seek to have individuals who are either completing federal prison sentences, or incompetent to stand trial, remain in federal custody indefinitely as a result of their “sexually dangerous” status. In order to secure the continued detention of an individual completing his sentence, the government must demonstrate by clear and convincing evidence that the individual “is a sexually dangerous person.” If the federal government can prove that, the individual is committed without a specific period of detention, possibly for life.

In 2010, the U.S. Supreme Court in United States v. Comstock, held that the government has authority, under the Necessary and Proper Clause of the U.S. Constitution, to require the civil commitment of individuals already in federal custody who are deemed dangerous.

There are few advocates for sex offenders, particularly those offenders who have been classified as still dangerous. It’s easy and even comforting to take a “throw away the key” position. Under New York’s law, state mental-health officials evaluate sex offenders to determine if they have a mental abnormality that makes them likely to re-commit sex crimes, reported The Journal News. The state Attorney General’s Office prosecutes the offenders, who are represented by the state Mental Hygiene Legal Service and public defenders.

However, much of what happens is shrouded in mystery because of the the limited public information about who is confined.

In addition the cost is enormous, New York is spending $65 million per year, or $175,000 to confine each person. For that kind of money, there should be a more thorough vetting process and a transparent proceeding for committing and keeping an offender who has already served his time.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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